California Supreme Court: Boy hurt by fallen tree can sue San Mateo County

Updated 4:00 pm, Thursday, October 12, 2017

The state Supreme Court has cleared the way for a 12-year-old boy, who was nearly killed when a 72-foot tree fell on his tent at a San Mateo County park, to sue the county for road-building and construction activities that allegedly helped to cause the collapse.

The court denied review Wednesday of the county’s appeal of a lower-court ruling allowing the suit to proceed. Justices Ming Chin and Carol Corrigan removed themselves from the case, for unstated reasons, and none of the other five Supreme Court justices voted to take up the appeal.

The tan oak tree toppled onto a tent where Zachary Rowe was sleeping on a camping trip with his family at Memorial Park, east of Pescadero, in July 2012. The boy’s pelvis was crushed, his internal organs were injured, and his right leg had to be amputated. Investigators later found that a fungal disease had weakened the tree and caused it to fall.

Zachary and his family, who live in Arizona, sued the county, some of its tree contractors and Pacific Gas and Electric Co., which was paid by the county to supply electricity to the park and had power lines near the campsite. An earlier court ruling allowed the family to sue PG&E for allegedly ignoring evidence that the tree was diseased.

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The county sought to dismiss the suit under a California law that protects state and local governments from liability for injuries caused by a “natural condition” of public property. But the First District Court of Appeal in San Francisco ruled in July that there was evidence that the county’s work at the site had altered its conditions and may have created dangers for nearby campers.

In creating the campsites, county crews altered the terrain by reducing rich soils to bare dirt, removed some of the trees, and made other changes that arguably changed the tree’s “natural condition,” Justice Therese Stewart said in the 3-0 ruling, which upheld a Superior Court judge’s refusal to dismiss the suit.

County lawyers argued that such an interpretation would discourage local agencies from building campsites in their parks for fear of lawsuits by campers. Stewart responded that counties could have a choice. “Theoretically, (they) might consider eliminating improvements such as campsites rather than shoulder responsibility for keeping those improved areas safe,” she said.

Declarations by the family’s expert witnesses “detailed the negative impacts of construction activity on the tree’s health that made the tree more susceptible” to the fungal disease, Stewart said. She said a jury should be allowed to decide whether actions authorized by the county “weakened the tree and made it more likely to fail.”

That ruling became final, and a precedent for future cases, when the state’s high court denied review of the county’s appeal.